dismissed EB-1C Case: Engineering

(b)(6)
DATE: MAY 0 7 2013 
IN RE: Petitioner : 
Beneficiary : 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Scrvicf 
Administrativ e Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive 
or Manager Pursuant to 
Section 203(b)(l )(C) of the Immigration and Nationality Act, 8 U.S.C . § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case . All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office . 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request can be found at 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R . § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: The preference visa pet1t10n was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitionyr is a Delaware corporation that seeks to employ the beneficiary in the United States as its 
product engineering manager. The petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b )(1 )(C) of the Immigration and Nationality Act (the Act), 8 U .S.C. 
§ ll53(b )( 1 )(C), as a multinational executive or manager . 
ln support of the Form I-140 the petitioner submitted a statement dated April 26, 2011, which contained 
relevant information pertaining to the beneficiary's employment history with the petitioning entity. The 
petitioner stated that the beneficiary has worked abroad for a combined period of twelve months "on beha If of 
The director reviewed the petitioner ' s submissions and determined that the petition did not warrant approval. 
The director issued a request for evidence (RFE) dated September 30, 2011 instructing the petitioner to 
provide a detailed organizational chart of the beneficiary's former employer abroad illustrating the foreign 
entity's organizational hierarchy during the time of the beneficiary's employment. The director also asked the 
petitioner to describe the job duties the beneficiary performed during his former employment with the foreign 
entity. 
In response, counsel for the petitioner provided a statement dated November 21, 20 I I. Counsel explained 
that the petitioner operates abroad by virtue of a joint venture that resulted in the creation of an affiliate entity, 
where counsel claims the beneficiary was intermittently employed in the role of a function manager from 
October 19, 2008 until April 6, 2011. Counsel also states that the beneficiary ' s employment with the 
petitioning entity commenced in January 2007. 
After considering the petitioner's response, the director determined that the beneficiary's employment abroad 
did not meet the regulatory requirements because the beneficiary did not have an uninterrupted one-year 
period of employment with the qualifying entity abroad. The director focused on the intermittent nature of 
the employment and cited the regulation at 8 C.F.R. 214.2(1)(1 )(ii)(A) in support of his conclusion. 
On appeal , counsel disputes the director ' s decision, pointing out that the regulatory provision cited in the 
director 's decision pertains to nonimmigrant L-lA petitions and that there is no similar provision that pertains 
to the l-140 immigrant petition. Counsel asserts that there is no regulatory provision that require s the 
beneficiary's employment abroad to be continuous. 
While the AAO agrees with counsel's assertion, the record nevertheless supports the director's ultimate 
finding of ineligibility regarding the issue of the beneficiary's employment abroad. The discussion below will 
address the relevant factors and explain the basis for the AAO's decision in this matter. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. --Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
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(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
(Emphasis added) . 
Additionally, the regulation at 8 C.F.R. 204 .5U)(3)(i) includes the following relevant filing requirements that 
pertain to the instant petitioner: 
(A) If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at least one 
year in a managerial or executive capacity by a firm or corporation , or other legal entity , or 
by an affiliate or subsidiary of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer or a subsidiary 
or affiliate of the firm or corporation, or other legal entity by which the alien was employed 
overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by 
the entity abroad for at least one year in a managerial or executive capacity[.] 
These regulatory provisions indicate that the relevant statutory language is specific in limiting the application 
of section 203(b )(I )(C) of the Act to only those executives and managers who have previously worked for a 
finn, corporation or other legal entity, or an affiliate or subsidiary of that entity, and who are coming to the 
United States to work for the same entity, or its affiliate or subsidiary. 
Thus , the beneficiary's employment abroad must necessarily predate the beneficiary ' s employment with the 
U.S. entity. 
Considering the facts in the present matter, the beneficiary's employment abroad did not commence prior to 
his employment with the petitioning entity. To the contrary, the beneficiary's U.S. employment commenced 
in January 2007 while his claimed employment with the qualifying entity abroad did not commence until 
approximately 22 months later in October 2008. Therefore , even though counsel is correct in pointing out 
that the beneficiary's period of employment abroad did not have to be continuous, the petitioner is required to 
establish that the beneficiary was employed abroad for an aggregate of one year prior to his entry to the 
United States to work for the petitioning entity. 
Additionally, the record does not adequately support the claim that the beneficiary's reason for traveling 
abroad was for the purpose of being employed by the foreign entity. To the contrary, the statement that was 
initially provided in support of the petition specifically indicated that the purpose of the beneficiary's travel 
abroad was to perform work "on behalf of This statement indicate s that the 
beneficiary performed work abroad for the benefit of the petitioning entity. Despite the benefici ary ' s trav el 
documents, which establish that the beneficiary spent more than an aggregate of one year abroad, such 
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documents are not sufficient to establish that the beneficiary was actually employed by the foreign entity, 
rather than the petitioner, during the time of his extended visits. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings . 
Matter ofSojjici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft ofCalifornia, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Thus, not only does the record fail to establish that the beneficiary was 
employed abroad during the requisite time period, but the facts also fail to support the finding that the 
beneficiary's time abroad was spent actually working for a qualifying foreign entity. 
The petitioner does not meet the express provisions of the statute and regulations. Therefore, the petitioner is 
ineligible for the benefit sought and the petition must be denied. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not sustained that burden . 
ORDER : The appeal is dismissed .